Basic Overview of ADR

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Basic Overview of ADR

• Workplace Dispute Resolution Section
• February 2, 1999

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AGENDA

• 900 - 910 Introduction and Overview of Session
• Martha McClellan, FDIC
• 910 - 1030 Introduction to ADR
• Dorethea Taylor-Kennedy, NIH-ORS
• Charlotte Kaplow, FDIC
• 1030 - 1040 Break
• 1040 - 1150 Choosing And Using an ADR Method
• Panel Members
• Dorthea Taylor-Kennedy, NIH-ORS
• Delores Crawford, GAO
• Sheila Wolcott/Linda Washington, BEP
• 1150 - 1200 Wrap-Up

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BASIC OVERVIEW OF ADRCOURSE OUTLINE

• I. Definition of ADR
• A. What ADR is
• B. What ADR is not
• C. Two basic kinds of ADR
• D. Advantages of ADR
• E. Primary Dispute Resolution Process --
  Adjudication

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BASIC OVERVIEW OF ADRCOURSE OUTLINE

• II. ADR Models
• A. Three Primary ADR Processes
• 1. Negotiation
• 2. Mediation
• 3. Arbitration
• B. Eight hybrid processes
• C. Spectrum of ADR procedures

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BASIC OVERVIEW OF ADRCOURSE OUTLINE (Continued)

• III. Choosing an ADR Method
• A. Is ADR Appropriate?
• 1. General presumption that it is
• 2. Circumstances when it may not be
• B. If ADR is Appropriate, How Do You Choose an
  ADR Method?
• 1. Issues to consider
• 2. Using the spectrum approach
• 3. What type of ADR is appropriate?
• 4. Client objectives -- overcoming
  impediments

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What is ADR ?

• All forms of dispute resolution other than court
  adjudication
• Appropriate Dispute Resolution

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What ADR is NOT . . .

• Appropriate for every dispute
• The solution to all disputes or conflicts

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Two kinds of ADR

• Interest-based
• Rights-based

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Advantages of ADR

• Reduces cost of dispute resolution
• Reduces length of time for dispute resolution

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Advantages of ADR (continued)

• Reduces court congestion may reduce court
  filings and dockets
• Increases involvement of participants
• Increases level of compliance

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Disadvantages to Primary Dispute Resolution
Process (Adjudication)

• Imposed by third-party decision maker
• Involuntary
• Binding

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Disadvantages to Primary Dispute Resolution
Process (Adjudication)

• Formalized and structured
• Public (no confidentiality)

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Three Primary Alternative Dispute Resolution
Processes

• Negotiation
• Mediation
• Arbitration

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Negotiation Characteristics

• Voluntary, private
• If agreement, enforceable as a contact
• No third-party facilitator
• Informal
• No limits on presentation of arguments
• Seeks mutually acceptable agreement

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Mediation Characteristics

• Voluntary
• If agreement, enforceable as a contract
• Party-selected neutral
• Unbounded presentation of evidence
• Seeks mutually acceptable agreement
• Private
• Narrow issues for trial

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Two types of mediation

• Rights-based mediation
• (Outcome prediction)
• Interests-based mediation
• (Facilitated negotiation)

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Arbitration Characteristics

• Voluntary
• If binding, only subject to limited review
• Party-selected third-party decisionmaker
• Less formal, procedurally
• Present proofs and arguments
• Sometimes principled decision
• Private

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Three Types of Arbitration

• 1. Voluntary, Binding
• 2. Voluntary, Non-binding
• 3. Compulsory, Non-binding

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Eight Hybrid ADR Models

• Mediation-Arbitration
• Private Judging
• Neutral Expert Fact-Finding
• Early Neutral Evaluation
• Mini-trial
• Summary Jury Trial
• Ombudsman
• Negotiated Rule-making

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ADR SPECTRUM
Fact-Finding ADR
Facilitated ADR
Advisory ADR
Negotiated ADR
Imposed ADR
Preventive ADR
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ADR Spectrum

• Preventive ADR
• Negotiated ADR
• Facilitated ADR
• Fact-Finding ADR
• Advisory ADR
• Imposed ADR

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Six Types of ADR

• PREVEVTIVE NEGOTIATED FACILITATED
• Partnering Principled Conciliation
• ADR Clauses Positional Mediation
• Negotiated Problem Solving
• Rule-Making
• Joint Problem
• Solving

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Six Types of ADR (Continued)

• FACT FINDING ADVISORY BINDING
• Neutral Neutral Binding
• Expert Fact Evaluation Arbitration
• Finding Private Judging
• Masters, Summary Jury
• Magistrates Trials
• Mini-Trials
• Non-Binding Arbitration

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ADR May Not Be AppropriateWhen There Is . . .

• A need for precedent
• A significant issue of Government policy
• A need to establish uniform policy
• An absent third party who may be adversely
  affected

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ADR May Not Be AppropriateWhen There Is . . .
(continued)

• A need for a full public record
• A need for continuing jurisdiction
• Another disputant who is not committed to the
  good faith use of ADR
• Tax, judicial foreclosure, or insurance defense
  issues

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Principle of Subsidiarity

• Resolve the matter at the lowest possible level
  of organization
• Start with the most interest-based procedure
  possible

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Designing Your Own Hybrid

• Tailor the process to the problem
• Use a tiered approach
• Bifurcate the issues/use different methods
• Identify an enforcement method for follow-up